Application of U.S. for an Order Authorizing Interception of Oral Communications at the Premises Known as Calle Mayaguez 212, Hato Rey, Puerto Rico

• Decision Date: 27 December 1983
• Docket Number: No. 82-1944,82-1944
• Citation: 723 F.2d 1022
• Parties: In the Matter of the APPLICATION OF the UNITED STATES FOR AN ORDER AUTHORIZING the INTERCEPTION OF ORAL COMMUNICATIONS AT THE PREMISES KNOWN AS CALLE MAYAGUEZ 212, HATO REY, PUERTO RICO. Appeal of Jose E. CARRERAS, et al.
• Court: U.S. Court of Appeals — First Circuit

Page 1022

723 F.2d 1022

In the Matter of the APPLICATION OF the UNITED STATES FOR AN

ORDER AUTHORIZING the INTERCEPTION OF ORAL

COMMUNICATIONS AT THE PREMISES KNOWN AS

CALLE MAYAGUEZ 212, HATO REY,

PUERTO RICO.

Appeal of Jose E. CARRERAS, et al.

No. 82-1944.

United States Court of Appeals, First Circuit.

Argued Oct. 4, 1983.

Decided Dec. 27, 1983.

Michael Avery, Boston, Mass., for appellants.

Ellen Sue Shapiro, Atty., Boston, Mass., with whom David D. Buvinger, Atty., Gen. Litigation and Legal Advice Section, Crim. Div., Dept. of Justice, Washington, D.C., was on brief, for the United States.

Jeanne Baker, Susan P. Sturm, Cambridge, Mass., and Silverglate, Gertner, Baker & Fine, Boston, Mass., submitted a brief for The Civil Liberties Union of Mass., The Mass. Ass'n of Crim. Defense Lawyers, and The Natl. Lawyers Guild, amici curiae.

Before CAMPBELL, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

TIMBERS, Circuit Judge.

I.

Early in 1981, attorneys in the Puerto Rico United States Attorney's office and attorneys in the Criminal Division of the Department of Justice were informed that certain individuals, including attorney Farinacci and several of his clients, were using his law office, located at Calle Mayaguez 212 (the premises), as a meeting place to plan activities in violation of federal law. The government submitted an application, pursuant to 18 U.S.C. Sec. 2518 (1982), to the district court in Puerto Rico for electronic surveillance of the premises. The application set forth the fact that the law office was located in the premises and that electronic surveillance, if granted, could be expected to intercept conversations of attorneys who were not suspected of criminal activity, in addition to those who were suspected. The application also detailed the illegal activities suspected to be taking place at the law office, supported by dates and the names of the alleged offenders.

On May 23, 1981, pursuant to the application, the court entered an order authorizing the interception of oral communications at the premises for thirty days. Subsequently, a second order was entered extending the authorization to intercept for another thirty days so that electronic surveillance was authorized from May 23 to July 23. Both orders directed the government to conduct the surveillance in such a manner as to minimize the interception of communications extraneous to the investigation, as required by Sec. 2518.

In 1982, Farinacci was indicted for bank robbery. This charge was wholly unrelated to the criminal investigation which led to the law office electronic surveillance. Farinacci filed a motion pursuant to 18 U.S.C. Sec. 3504 (1982) ¹ demanding that the government provide information concerning electronic surveillance to be used against him in the bank robbery trial. The court denied the motion for disclosure in the criminal case, but ordered the government to file its sealed records for in camera inspection or to furnish the surveillance inventories to those who were either named in the surveillance application or order, or who in fact were overheard. 18 U.S.C. Sec. 2518(8)(d). On June 22, 1982, the government mailed inventories to ten individuals, five of whom are appellants on the instant appeal.

On July 14, after receipt of the inventories, twelve individuals and organizations filed a motion for inspection of the electronic surveillance materials pursuant to 18 U.S.C. Sec. 2518(8)(d). Five of the movants were attorneys in the firm of Carreras, Acevedo and Farinacci. The remainder were clients of the firm. All either had received inventories or had been advised by inventory recipients that conversations at the office had been intercepted. The motion was accompanied by affidavits executed by the attorneys or clients which alleged that confidential attorney-client conversations probably had been intercepted during the period of surveillance. The government opposed the motion on the ground that protection of the confidentiality of the ongoing grand jury investigation outweighed movants' need to inspect the surveillance materials at that time. Further, the government argued that movants had failed to specify the cases believed to have been affected by the interceptions or the dates or subject matter of conversations alleged to have been overheard.

On August 31, after reviewing the surveillance materials in camera, the court denied the motion for early disclosure of the materials on the ground that protection of the grand jury investigation outweighed movants' interests in obtaining the materials at that time. The court also held that there was no interference with the attorneys' representation of their clients and that minimization of the surveillance had been observed in accordance with 18 U.S.C. Sec. 2518(5). ² This appeal followed.

II.

Title III of the Omnibus Crime Control and Safe Streets Act of 1969 deals with one of the most difficult areas confronting a technologically advanced society: providing law enforcement officials with the tool of electronic surveillance while at the same time protecting citizens' privacy rights in wire and oral communications. Appellants sought disclosure of the surveillance materials under one provision of Title III, 18 U.S.C. Sec. 2518(8)(d). ³

We have dealt recently with a situation similar to the one before us today. Matter of a Warrant Authorizing Interception of Oral Communications (Cintolo ), 708 F.2d 27 (1st Cir.1983). That case involved an attorney who was a target of a federal grand jury investigation and a subject of court-authorized electronic surveillance. The surveillance, however, took place at an apartment, not at a law office. The attorney sought disclosure of the surveillance material because he thought that the government might have intercepted privileged attorney-client communications. He wanted to prevent privileged information from being placed before the grand jury. The district court examined the material in camera, concluded that there was no improper interception, and held that at that time the attorney's interest in examining the surveillance material was outweighed by the importance of maintaining the secrecy of the grand jury investigation. In affirming, we held that in camera inspection was the recommended method for resolving secrecy concerns, including those arising from attorney-client communications, and further that, even if the district court later was found to have been in error (e.g., that the government had invaded the attorney-client privilege), the aggrieved persons could refuse to answer grand jury questions, could move to dismiss the indictment, or could seek to exclude such evidence at trial. 708 F.2d at 28.

As a sequel to Cintolo, this appeal presents the narrow question of whether appellants are entitled to inspect the surveillance materials concerning a law office bug at this premature stage of an ongoing grand jury investigation. We hold that the court did not abuse its discretion in denying appellants' disclosure motion.

Appellants make two arguments for early disclosure: the effective functioning of the law firm of the appellants who are attorneys and the need for all appellants to seek remedies for wrongful interceptions.

First, the attorney-appellants argue that, once the fact of surveillance of a law office becomes known, the firm cannot function effectively until the circumstances which led to the surveillance and the extent of that surveillance are fully disclosed. Until such disclosure is made, so the argument goes, there is no reason to believe that the surveillance will not be resumed and, until it is concluded, clients will not feel free to discuss their affairs with the attorneys. We fail to understand how the granting of the attorney-appellants' motion would put their clients at ease. Disclosure of additional surveillance information, beyond the already disclosed fact that surveillance has taken place, would provide no additional assurance that surveillance would not resume--if the government believed, and a court could be convinced, that resumption was appropriate.

Second, all appellants argue that they are being denied a remedy to correct the government's access to privileged information. While we appreciate the force of appellants' argument with respect to the importance of the attorney-client privilege, we must point out that not every attorney-client meeting or meeting place is absolutely off limits to law enforcement officials. Andresen v. Maryland, 427 U.S. 463 (1976); Hoffa v. United States, 385 U.S. 293 (1966); National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980). Moreover, communications between attorney and client which concern illegal activities in progress are not protected by the privilege. United States v. Hoffa, 349 F.2d 20, 37 (6th Cir.1965), aff'd, 385 U.S. 293 (1966). The district court here, after a careful in camera inspection of the surveillance material, found that there had been no interference with the attorneys' representation of their clients. The crucial point, however, is that, even if this finding later is held to be incorrect--e.g., due to a different factual interpretation of the information overheard or due to a broader legal definition of the privilege--then appellants will have important remedies available. Here, as we pointed out in Cintolo, the clients and the attorneys may refuse to answer grand jury questions based on privileged information, United States v. Calandra, 414 U.S. 338, 346 (1974); they may move to dismiss the indictment, United States v. Rasheed, 663 F.2d 843, 853-54 (9th Cir.1981), cert. denied, 454 U.S. 1157 (1982); or they may seek to exclude privileged material and its fruits at trial. Fed.R.Evid. 501; 18 U.S.C. Secs. 2515, 2518(5); Scott v. United States, 436 U.S. 128 (1978).

Appellants cite cases where law office searches--electronic and otherwise--have been condemned because of their ...